Legal Question in Family Law in Virginia

Re: Grounds for Divorce

The factual scenario which you've outlined in your question, as a practical matter, simply doesn't comport with the plain meaning (nor, arguably, the intent)of Va. Code Sec. 20-90(9)(a)

which references(as one ground of divorce): "when the husband and the wife have lived separate and apart without any cohabitation and without interruption for one year".

Re: Grounds for Divorce

Correction: Prior answer should read Va. Code Sec. 20-91 rather than 20-90.

Re: Grounds for Divorce

Virginia will recognize a separation even when both parties reside in the same house. There is case law defining the criteria which basically holds that you must present proof of living separate and apart in the same husehold. You should have separate lives. Eat separately, shop separately, sleep separately, keep separate bank accounts and have split the payment of the bills so that each has individual responsibilities. The theory is that you have separated in all practical terms. If you feel this situation applies to you, see a lawyer to get confirmation.

Good luck.

Re: Grounds for Divorce

Yes you may separate in the same house by sleeping in separate rooms, not resuming sexual relations with one another, you cannot be in marital counseling, don't cook for each other, do not do each other's laundry. The problem is you must bring a witness with you to your final divorce hearing and that can be trickey because that witness has to testify that they've spent a good deal of time with you during this period of separation and they have witnessed that the two of you have slept in separate bedrooms and have not performed the marital duties for one another described above. If you can show this to the court then you can use the date of separation while in the same house.

Be very careful about leaving however because your spouse could file for divorce from you based on desertion. Ideally you should get your spouse to sign an agreement which resolves all your property and support rights between the two of you before you leave. If you can't get him or her (I don't know if I'm talking to the wife or husband here so just for demonstrative purposes here I'll assume I'm talking to the Wife) to sign that and you're desparate to get out of there then have him sign a paper which with the words on it "both the husband and wife mutually and volunatrily agree to separate on this ___ day of ___, 2005. It is understood and agreed that the wife's departure from the marital home to her own seperate residence is not an act of desertion but rather a decision reached mutually between the parties that we should separate."

Good luck to you. You should have a consultation with an attorney before leaving ESPECIALLY since you have minor children!